dismissed EB-1C Case: Import, Export, And Retail

fdentiQing data deleted to 
prevent clezrly unwarranted 
invasion of personal privacj 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
mlBLIC 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: JUN 1 7 2009 
LIN 07 052 53263 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
un F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Georgia corporation engaged in the import, export, and retail of household 
appliances. The petitioner seeks to employ the beneficiary as its general manager. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief along with additional 
documents in support of his arguments. 
The AAO has conducted its own independent review of the documentation on record. Pursuant to a 
thorough analysis of the petitioner's submissions, the AAO finds that the petitioner submitted 
sufficient evidence and information to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. Therefore, the first ground for the director's adverse 
decision is hereby withdrawn. The remainder of this discussion will focus on the second ground 
cited as a basis for denial. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties with the U.S. 
petitioner. Specifically, the AAO will examine the record to determine whether sufficient evidence 
has been submitted to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
Page 4 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction fi-om higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated November 15, 2006, which 
includes the following description of the beneficiary's proposed U.S. employment: 
[The beneficiary] will continue to plan, develop and establish policies and objectives 
of [the petitioner]. He will continue to direct and coordinate business contracts and 
shipments in the entire operation of the North Amercia[n] market and will develop 
other relevant policies and procedures implementing the overall objective of the 
parent company. [The beneficiary] will also be active with the Board of Directors 
and make sure they comply with established policies and objectives of the company. 
He will continue to re-structuring [sic] personnel within the company and redetermine 
and evaluate the current operation functions on behalf of the parent company for 
better business opportunities. [He] will also preside over the Board of Directors and 
serve as chairman of executive officers to make sure that they comply with 
established policies and objectives of the company. He will report directly to the 
parent company for all business matters within the U[.]S[.]A[.] 
The director determined that the above job description was insufficient to establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity. Accordingly, a 
request for additional evidence (RFE) was issued on December 18,2007, instructing the petitioner to 
provide: 1) a detailed description of the job duties the beneficiary would be expected to perform 
under an approved petition, accompanied by the percentage of time assigned to each job duty; 2) the 
job titles of the beneficiary's prospective subordinates as well as their respective job duties; and 
3) the petitioner's organizational chart, identifying the beneficiary's proposed position. 
In response, the petitioner submitted a letter from counsel dated March 10, 2008 in which counsel 
claimed that the beneficiary is responsible for overseeing five employees including the general 
manager, an executive assistant, an accountant, a sales manager, and a marketing manager. The 
petitioner provided an organizational chart listing a total of ten positions, five of which were 
assigned to specific individuals in the United States and one position assigned to an employee of the 
foreign parent entity. The remaining positions were not assigned to specific individuals, thus leaving 
it questionable as to whether the positions were actually filled. The petitioner also provided 2006 
Form W-2 statements for four employees, including the beneficiary. Lastly, the petitioner provided 
a list of duties and responsibilities and the percentage of time allotted to each item on the list. As the 
director included the job description in its entirety in the notice of denial, the AAO need not restate 
this information in the current discussion. 
On May 22, 2008, the director issued a notice denying the instant petition based, in part, on the 
petitioner's failure to establish that the beneficiary's proposed position would be within a qualifying 
managerial or executive capacity. 
 The director noted that the petitioner provided a deficient 
description of the beneficiary's proposed job duties, thereby precluding U.S. Citizenship and 
Immigration Services (USCIS) from being able to determine whether the beneficiary would spend 
the primary portion of his time performing qualifying tasks. 
On appeal, counsel submits a letter dated July 16, 2008 in which he argues that the beneficiary's 
tasks are scheduled on a daily basis and that it is therefore virtually impossible for the petitioner to 
foresee when and with whom the beneficiary would have meetings. Counsel further states that the 
petitioner was only asked for a description of duties, arguing that there was no mention of day-to- 
day tasks until the director issued the notice of denial. Counsel's arguments, however, are not 
persuasive and fail to overcome the adverse decision. 
First, the AAO notes that the regulation at 8 C.F.R. 
 204.50)(5) expressly requires that the 
petitioner provide a detailed description of the beneficiary's proposed employment, clearly 
describing the job duties to be performed such that a determination can be made that the employment 
would be within a qualifying managerial or executive capacity. The fact that the director employed 
the term "tasks" rather than "duties" in his denial is merely a matter of semantics, as no meaningful 
distinction can be made between the two terms and the degree of detail that is implied by using one 
term over the other. Precedent case law places further emphasis on the significance of a detailed job 
description, establishing that the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 
1990). Furthermore, even if counsel were in any way confused by the director's reference to tasks 
versus duties, the mere finding that the previously submitted job description was lacking in sufficient 
detail should have been sufficient to prompt counsel to advise the petitioner that a greater degree of 
detail was necessary in order to establish eligibility. Here, instead of addressing the deficiency 
pointed out by the director by providing further information about the beneficiary's proposed 
employment, counsel merely argues that the director's judgment in issuing the finding was somehow 
unsound. 
Furthermore, counsel interprets the director's comments to mean that the petitioner's error lay 
primarily in its failure to provide a schedule of the beneficiary's proposed tasks. Contrary to 
counsel's interpretation, however, the petitioner was not asked to provide the beneficiary's daily 
schedule. Rather, it was merely asked to explain how the beneficiary plans to carry out the general 
job responsibilities that are listed in the job description. For instance, the petitioner claimed that 
40% of the beneficiary's time would be spent planning and developing policies and objectives and 
another 40% of his time would be spent supervising, directing, and coordinating marketing 
strategies. However, the petitioner failed to translate these job responsibilities into the specific tasks 
that would help explain the means by which the beneficiary plans to fulfill his allegedly managerial 
or executive role. The director's request was not only reasonable, but was clearly supported by the 
regulations and precedent case law. Thus, counsel's argument that the director's request was 
unsound is erroneous and clearly fails to address the relevant issue at hand, i.e., the lack of a detailed 
description of the proposed employment. 
Next, the AAO notes that even where a petitioner provides a detailed job description, this 
information alone is not sufficient to establish eligibility. Rather, the job description must be 
considered in light of other highly relevant factors, including the petitioner's organizational 
Page 6 
hierarchy, the beneficiary's position therein, and the petitioner's overall ability to relieve the 
beneficiary from having to primarily perform the daily operational tasks. In the present matter, 
despite the beneficiary's top-most position within the petitioner's hierarchy, the petitioner has failed 
to establish that at the time of filing it had the necessary support personnel available to perform the 
daily operational tasks such that the beneficiary would be relieved from having to do so. Despite the 
organizational chart that was submitted in response to the RFE, listing a total of ten positions, the 
petitioner claimed at Part 5, Item 2 of the Form 1-140, that it had four employees at the time of filing. 
This information is further corroborated by the four 2006 Forms W-2 that the petitioner submitted in 
response to the RFE, showing that the beneficiary and three other employees were employed by the 
U.S. entity at the time of filing. In light of the petitioner's original claim and the supporting Forms 
W-2, it appears that neither the organizational chart, which submitted in response to the RFE, nor the 
employee list, which counsel provided on appeal, is an accurate representation of the petitioner's 
staffing structure at the time of filing. Moreover, counsel's list, which includes the names and 
position titles of five employees, is inconsistent with the names and position titles as they appear in 
the organizational chart. 
 For instance, counsel lists 
 as the petitioner's sales 
manager. However, the same individual was identified in the petitioner's organizational chart as the 
customer service and warehouse manager. Counsel also identifies as an executive 
assistant and s the marketing manager. However, neither of these individuals was 
identified in the organizational chart. Therefore, even with regard to and- both 
of whom appear on counsel's list and appear to have been employed in 2006 at the time of filing, the 
AAO cannot make an accurate determination as to the positions they held or the job duties they 
perform. 
In summary, there are two key elements that contribute to the conclusion that eligibility has not been 
established by the petitioner in the present matter. First, the petitioner has failed to provide a 
detailed description of the job duties the beneficiary would perform in his proposed position. 
Second, even if the petitioner had provided an adequate job description of the proposed employment, 
the record lacks sufficient evidence upon which the AAO can base a finding that the petitioner was 
able to employ the beneficiary in a qualifying managerial or executive capacity at the time the 
petition was filed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.